Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee takes note of the Law on the Peaceful Settlement of Labour Disputes of 2004.

Article 1 of the Convention. Protection against anti-union discrimination in law. The Committee takes note of the comments made by the International Trade Union Confederation (ITUC) in 2008, to the effect that although the Labour Law of 2005 prohibits discrimination on the basis of trade union membership, it does not expressly prohibit discrimination for trade union activities and establishes no specific sanctions for anti-union harassment. The Committee also notes that, according to the Confederation of Autonomous Trade Unions of Serbia (CATU), the right to organize is not protected in practice. The Committee notes, however, that the Labour Law prohibits all acts of anti-union discrimination and establishes dissuasive sanctions and remedies. The Committee requests the Government to provide information on the application of the Convention in practice, including through statistical data on the number of complaints of anti-union discrimination brought to the competent authorities (labour inspectorate and judicial bodies), the outcome of any investigations and judicial proceedings and their average duration.

Article 4. Promotion of collective bargaining. The Committee notes that, according to section 263 of the Labour Law, “[c]ollective agreements shall be concluded for a three-year term”. The Committee considers that the parties should be in a position to shorten this duration by mutual agreement, if they consider it appropriate. The Committee requests the Government to indicate the measures taken or contemplated to amend section 263 of the Labour Law in accordance with the above.

Representativeness of workers’ and employers’ organizations. In its previous observation, the Committee had raised the need to amend section 233 of the Labour Law – which imposes a time period of three years before an organization which previously failed to obtain recognition as most representative, or a new organization, may seek a new decision on the issue of representativeness. The Committee had emphasized the need to ensure that a new request may be made after a reasonable period has elapsed, sufficiently in advance of the expiration of the applicable collective agreement. The Committee recalls that the Serbian Association of Employers (SAE) had criticized this provision in its communication of 7 April 2005 as imposing an excessively long period of time. The Committee notes that the Government indicates that this provision is aimed at protecting unions and employers’ associations whose representativeness have been established by providing that their status may not be reviewed prior to the expiry of a three-year term. Nevertheless, according to the Government, this provision does not prevent trade unions and employers’ organizations, that previously failed to establish their representativeness, from asking for a new decision on this issue at any moment, without having to wait for three years. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to amend section 233 of the Labour Law in a manner which reduces the three-year time span to a more reasonable period or to allow explicitly the procedures for the determination of most representative status to take place in advance of the expiration of the applicable collective agreement.

The Committee takes note of the comments made by the CATU, forwarded with the Government’s report, according to which there is a lack of a mechanism for identification of the number of members of representative workers’ and employers’ organizations, as well as for verification of such data at the enterprise level. The Committee notes that, according to section 227, paragraphs 4 and 5, of the Labour Law, “[t]he total number of employees and employers on a territory of a certain territorial unit, in a branch, group, subgroup or a line of business shall be determined on the basis of information supplied by the competent statistical body, or other body keeping the pertinent records” and “[t]he total number of employees with an employer shall be determined according to the certificate issued by the employer”. The bodies in charge of assessing representativeness are the employer, in the first place, and the tripartite panel for establishing representativeness, in the second place. The Committee requests the Government to provide additional information on the mechanism for assessing representativeness of trade unions and associations of employers.

The Committee recalls that, in its previous observations, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to be able to engage in collective bargaining which is particularly high, especially in the context of negotiations in large enterprises, at the sector or national level. The Committee notes that section 222 of the Labour Law of 2005 still requires employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee recalls that the SAE had criticized these provisions. The Committee notes that, according to the Government, the issue will be considered when making changes and amendments to the Labour Act, with the participation of the representative workers’ and employers’ organizations. The Committee once again requests the Government to indicate in its next report the measures taken or envisaged to amend section 222 of the Labour Law of 2005 so as to lower the percentage requirements which must be fulfilled by employers’ organizations in order to engage in collective bargaining.

The Committee expresses the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to indicate the progress made in this respect.